NO. 93-479 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

MICHAEL THOMAS STEWART, Defendant and Appellant 

## SEP 

# 20

## 1994

APPEAL FROM: DistrictCourt of theNineteenthJudicialDistrict, In and for the County of Lincoln, The Honorable Robert S. Keller,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Amy N. Guth, Public Defender's Office, Libby,Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheal Wellenstein, Assistant Attorney General, Helena, Montana Scott B. Spencer, Lincoln CountyAttorney, Libby,Montana

Filed: Submitted on Briefs: May 19, 1994 Decided: September 20, 1994

CldrkJustice William E. Hunt, Sr., delivered the opinion of the Court. DefendantMichael Thomas Stewartappeals from an order of the Nineteenth Judicial District Court, Lincoln County, denying defendant's motion to dismiss on the grounds of denial of a speedy trial. The decision of the District Court is affirmed. The sole issue on appeal iswhether the District Court erred in denying defendant's motion to dismiss on speedy trial grounds. On January 28, 1991, a Lincoln County jury found defendant Michael Stewartguilty of theft,attempted theft,and forgery. The DistrictCourt sentenced defendant to serveten yearson each count in the Montana State Prison, with five years suspended on each count. The court ordered these sentences to run concurrently. Defendant appealed his conviction to this Court; execution of his sentenceswas stayed pending appeal. In October 1991, the United States charged defendant with conspiracy and mail fraud. Defendant was found guilty of conspiracy to commit mail fraud. The Federal District Court sentenced defendant to a term of fourteen months in prison and three years of supervised release upon his release fromprison. OnJune 23, 1992, thisCourt reversedand remanded defendant's Lincoln County felony convictions. While Stewart was servinghis federal sentenceinSouthDakota,thisCourt issueda remittitur on July 9, 1992, and filed it in the District Court on July 13, 1992. The District Court issued a warrant for defendant's arrest onAugust 5, 1992, charging him with attempted theft, theft, and, forgery. A detainer was filed by the State on July 8, 1992. On August 6, 1992, the State forwarded the appropriate detainer documents to the federal prison. On August 18, 1992, federal prison authorities informed defendant of the detainer and advised him of his right to request final disposition of the Montana charges within 180 days pursuant to Article I11 of the Interstate Agreement on Detainers. Defendant did not request a final disposition. OnApril 20, 1993, defendant was released from federalprison andbrought to LincolnCounty to face the three felony charges. On April 23, the court released defendant onhis own recognizance and appointed counsel to represent him. A trial date was set for July 26, 1993. On June 9, 1993, defendant filed a motion to dismiss for lack of a speedy trial, claiming that 378 days had elapsed from the filing of the remittitur to the trial date. The courtdenied defendant'smotion to dismiss and granted hismotion to continue, resettingthe trial for August 24, 1993. The court granted defendant's motion to dismiss the theft charge on the grounds of double jeopardy; accepted defendant 

### s guiltyplea to the chargeof attempted theft;dismissed the forgery charge;and sentenced defendantto a two-year suspended sentenceto

run concurrentlywith the federal sentence.Defendant asserts that he has been denied the right to a speedy trial by a delay of 378 days from the time of the filing of the remittitur on July 13,1992,to thedate of the second trial on July 26, 1993. Defendant argues that his right to a speedy trial is protected by the Sixth Amendment to the United States Constitution and is not limited by the Interstate Agreement on Detainers,Article III(1) of 5 46-31-101,MCA. The record shows that the defendant failed to petition the State to dispose of the charges within 180 days pursuant to Article III(1) of the Interstate Agreement on Detainers which provides inpart: Whenever a person has entered upon a term of imprisonment inapenal or correctional institution of a party state and whenever during the continuance of the term of imprisonment there ispending inany otherparty state any untried indictment, information, or complaint on thebasis of which a detainerhas been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction writtennoticeof the place of his imprisonment and his request for a final disposition

# . . . . Article III(1) of 5 46-31-101,MCA. The State did not make a request for temporary custody under Article IVof the Interstate Agreement on Detainerswhichprovides in part: Theappropriate officerofthejurisdictioninwhich an untried indictment, information, or complaint is pending shall be entitled tohave aprisoner againstwhom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with ArticleV(1) hereof upon presentation of a written request for temporary custody or availabilityto the appropriate authorities of the state inwhich the prisoner is incarcerated 

# .. . . Article IV(1) of S 46-31-101,MCA. In a memorandum supporting its order denying defendant's motion to dismiss, the District Court found that defendant's failure to demand a trial under Article 111 of the Interstate Agreement on Detainers was not a waiver of his right to a speedy trial under the Sixth Amendment. Also, the court found that the State's failure to request temporary custody of defendant did not deprive defendant of a speedy trial. Defendant argues that the court denied his motion to dismiss because defendant failed to demand a trial to dispose of the charges pursuant to Article 111 of the Interstate Agreement on Detainers. Defendant contends that the court wrongly interpreted the InterstateAgreement on Detainersby turning defendant's right to dispose of the charges within 180 days into a condition precedent thatmust be exercised in order topreserve the right to

a speedy trial. Therecorddoes not supportdefendant's contention. The court viewed defendant's failure to exercisehis right underArticle 111 of the Interstate Agreement on Detainers as a factor to be considered, rather than

### adispositive fact, indetermining whether defendant had been denied a speedy trial. The court correctly analyzed defendant's claim under the test set forth in Barker v. Wingo (1972), 407U.S. 514, 92S. Ct. 2182, 33 L. Ed. 2d 101. ThisCourt adopted the Barker test in State ex rel. Bricenov. District Court (19771,173 Mont. 516, 518, 568 P.2d 162, 163-64, The accusedls right to a speedy trial 

### in a criminal prosecution is guaranteed by the Sixth Amendment to the United States Constitution, and Article 11, Section 24, of the Montana Constitution. Todetermine whether adefendant's right to a speedy trial has been violated, this court must balance four factors:

(1) length of delay, (2) reason for delay, (3) the defendantfs assertion 

### of his 

### right, and (4) the prejudice to defendant. Barker, 407 U.S. at 530; Statev. Thompson (1993), 263 Mont. 17, 32, 865 P.2d 1125, 1135;Statev. Hembd (19921,254

### Mont. 407, 413, 838P.2d 412, 416;Statev. Heffernan (lggl), 248Mont. 67, 70,809 P.2d 566, 568. Of the four Barker factors, no one factor is determinative; all four must be considered in light of the facts and circumstances. Thompson, 865 P.2d at 1135; State 

### v. Morris

(19881, 230 Mont. 311, 317, 749 P.2d 1379, 1382. (1)LENGTH OF DELAY We have held that the first factor, length of delay, is of primary importance. The other factors need not be considered unless the length ofdelay ispresumptivelyprejudicial. Thompson, 865 P.2d at 1134;State

### v. Dahms (19921, 252Mont. 1, 12,825 P.2d 1214, 1220. Whether the length of delay will be considered presumptively prejudicial depends on the facts of each case. The initial computation of length of delay is made without allocation of days to either party. Thompson, 865 P,2d at 1135; Dahms, 825 P.2d at 1220;Heffernan, 809 P.2d at 568. While delays of over 200days will usually trigger the full speedy trial analysis, Dahms, 825 P.2d at 1220-21; State v. Wombalt (L988), 231 Mont. 400, 753 P.2d 330,we have held that a delay of 175 days was presumptively prejudicial. State v. Bartnes (1988), 234 Mont. 522, 764 P.2d 1271.In the case of retrials, it is the time of the filing of the remittitur which is controlling indeterminingadefendant's speedy trial rights. State

### v. Cardwell (1981), 191 Mont. 539, 545, 625 P.2d 553, 556, State v. Sanders (1973), 163 Mont. 209, 214, 516 P.2d 372, 375. In the present case, the clock began running when the remittitur was filed in District Court on July 13, 1992, and stopped running July 26, 1993, the date set for trial. The 378 days between the filing of the remittitur and the trial date is presumptively prejudicial to defendant, therefore, the remaining three factorsmust be considered. (21 REASONS In considering the second factor, the reasons for the delay,

we allocate thedelayby determininghowmuch time is attributable to eachparty. Thompson, 865P.2d at 1135; Heffernan, 809 P.2d at 568. A total of 378 days elapsed between the filing of the remittitur on July 13, 1992, and the July 26, 1993, trial date. Defendant argues that whenadefendant is incarcerated ina foreign jurisdiction, the State must acquire temporary custody over the defendant pursuant to Article IV of the Interstate Agreement on Detainers in order to guarantee a speedy trial. Defendant arguesthat all of the 378 days are chargeable to the State because the State did not seek temporary custody over defendant. We do not agree. The record shows that 36 days elapsed from the July 13, 1992, filing of the remittitur to the August 18, 1992, filing of the detainer. Ninety-seven days elapsed from the April 20, 1993, release of defendant into the custody of the State of Montana to the July 26, 1993, trial date. All of this 133 day delay was institutionaland is chargeable to the State of Montana. There is nothing in the record to suggest that thisdelaywas purposeful or caused by bad faith on the part of the State. We do not suggest that a defendant should waive the right to a speedy trial because of institutionaldelays. However, institutional delayweighs less heavily against the State than does purposeful delay. Thom~son, 865 P.2d at 1135;Hembd, 838 P.2d at 416. In State 

### v. Grant (1987),227 Mont. 181, 738 P.2d 106, this Court addressed the amount of time chargeable to a defendant incarcerated in a foreign jurisdictionwhere a detainer had been filed. We held that the time chargeable to the defendant began when the State of Montana issued the first of three detainers to the defendant and the State of Idaho notifying them of the charges pending against the defendant inMontana. Grant, 738 P.2d at 109. The time chargeable to the defendant stopped running when the defendant asserted his right to a speedy trial by requesting a final disposition of theMontana charges. Grant, 738 P.2d at 109. We concluded that because the defendant knew the charges werepending against him in Montana, it was up to the defendant to request a speedy disposition of the charges against him. Grant, 738 P.2d at 109. The record shows that 245 days elapsed from the August 18, 1992, filing of the detainer to the April 20, 1993, release of defendant into the custody of the State of Montana. Defendant was

awareof thechargespending inMontana and ofhis rightto request

a final disposition of those charges under Article I11 of the Interstate Agreement onDetainers. Defendantdidnot exercisethis right. The total 245 days is chargeable to defendant. Grant, 738 P.2d at 109-10. (3)ASSERTION OF THE RIGHT Therecord shows thatdefendant satisfiedthe third elementby moving to dismiss the action on speedy trial grounds on June 9, 1993,prior to the commencement of his trial. 141 PREJUDICE TO THE DEFENDANT The final Barker factor is prejudice to the defendant. Three interestsof a defendantmay be prejudiced by a delay in coming to trial. These interests are: (1) pretrial incarceration,

(2)anxietyand concern,and (3) impairment of defense. Thom~son, 865 P.2d at 1135; Hembd, 838 P.2d at 416;Barker, 407U.S. at 532. While all three are important, the most critical interest is impairment ofdefense. Thom~son, 865P.2d at 1135;State

### v. Mooney (1991),248 Mont. 115, 119, 809 P.2d 591, 594. The first interestwe must consider is the defendant's right to prevent oppressive pretrial incarceration and its resultingprejudice. Heffernan, 809 P.2d at 570; Barker, 407 U.S. at 532. Defendantwas released into the custody of the State of Montana on April 20, 1993. The District Court released defendant on his own recognizance on April 23, 1993, to stand trial on July 26, 1993. Defendant was not incarcerated during this period and cannot complain of prejudice. Defendant argues that the detainer caused him to suffer prejudice duringhis incarceration in federal prison following his conviction on conspiracy to commit mail fraud. Defendant was charged by the State of Montana with theft, attempted theft, and forgery resulting from the same circumstances as the federal charge. We have held that I1incarcerationon a separate charge negates any prejudice arising from being incarcerated awaiting trial." Hembd, 838 P.2d at 416;Statev. Palmer (1986),223Mont. 25, 27-28, 723 P.2d 956, 959; State v. Harvey (l979), 184 Mont. 423, 435, 603 P.2d 661, 668. The record shows no evidence of oppressive pretrial incarceration. Defendant would have been incarcerated on the federal charges even if the State of Montana had not filed a detainer. There is no evidence that defendant suffered any prejudice fromhis pretrial incarceration. The second interestwemust consider is the level of anxiety the detainer caused the defendant. Defendant contends that his anxiety increased while in federal prison because after the detainerwas filed he was denied furloughs thatwould have allowed him to visit his immediate family, including his elderly mother. We have previously stated that a certain amount of anxiety andconcern is inherent in being charged with a crime, and that the existence of anxiety or emotionaldistress isnotoriouslydifficult toprove. Thom~son, 865 P.2d at 1135; Statev. Curtis (1990), 241 Mont. 288, 303, 787 P.2d 306, 316. Although defendantdid not act to remove the source of his anxietyby requesting a dispositionof the State charges,defendant can be presumed to have experienced

some anxiety and concern due to the detainer. The final and most important consideration is whether the delay impaired or prejudiced the defense. Defendant argues that the State impeded his defense by denying him effective assistance of counsel. Defendant contends that following his federal conviction and incarceration he was unable to retain private counsel to prepare a defense to the pending State charges. Defendant further contends that had the State extradited him in a timely manner he would have been able to request a public defender

sooner than he did. The record shows that defendant was released on his own recognizance on April 23, 1993,and that he remained free through the final disposition of the State charges. During that time the court granted defendant's request forpublic counsel. The record reveals that defendant's counsel provided an effective defense. The court granted defendant's motion to dismiss the theft charge. The court accepted defendant's guilty plea to the charge of attempted theft, and the court dismissed the forgery charge. Defendant received a two year suspended sentence to run concurrently with his federal sentence.After considering the above three factors in light of the record, we conclude defendant was not prejudiced by the delay. Defendant's own conductprevented the State frombringing him to 

### a speedy trial. He cannot now complainthathewas denied a speedy trial. Grant, 738 P.2d at 110. We hold that under the four-factor balancing test of Barker, defendant was not denied his right to a speedy trial, and the District Court did not 

### err in denying defendant's motion to dismiss. The District Court is affirmed.

Justice '

We concur: